Memorandum from K D Ewing, Professor of
Public Law, King's College, London

INTRODUCTION

1. Part 2 of the Draft Civil Contingencies
Bill represents an important departure from the traditional British
way of dealing with emergencies. This has been based on a combination
of ad hoc powers to deal with circumstances as they arise, and
standing powers to deal with emergency situations of a more foreseeable
nature. The Emergency Powers (Defence) Act 1939 and the Prevention
of Terrorism (Temporary Provisions) Act 1974 are examples of the
former. The Emergency Powers Act 1920 is an example of the latter.
[32]Under
the Draft Bill the need for Parliament ever to approve ad hoc
powers in the future will be greatly diminished.

2. Part 2 of the Draft Bill gives rise to
a number of concerns which are pursued in this submission. These
relate to:

 the scope and scale of the proposed
powers, including their consequences for lawful industrial action;

 the limited and diluted role of Parliament
in supervising the circumstances in which the powers may be used;
and

 the diluted role of the Human Rights
Act and the limited scope for judicial scrutiny of emergency regulations.

It will be for the Joint Committee to decide
whether the political case for such powers has been made out.
But the onlooker will be struck by the fact that it has not been
necessary to use standing emergency powers since 1974, and by
the fact that it has never been necessary to use them for purposes
other than trade disputes.

THE DRAFT
CIVIL CONTINGENCIES
BILL

3. Under the guise of "modernisation",
it is proposed in Part 2 of the Draft Bill to replace the Emergency
Powers Act 1920 with a new framework for dealing with emergencies.
The Emergency Powers Act 1920introduced to deal with industrial
action though capable of being used for other purposes[33]permits
a proclamation of emergency to be issued in very limited circumstances:
in response to action "of such a nature and on so extensive
a scale as to be calculated, by interfering with the supply and
distribution of food, water, fuel, or light, or with the means
of locomotion, to deprive the community, or any substantial portion
of the community, of the essentials of life" (s 1(1)).

4. The Draft Bill will permit a proclamation
to be issued for many other reasons, on the much less rigorous
standard of a "serious threat", for example to the welfare
of all or part of the population (clause 17(1)). But these reasons
are sometimes obscure in view of the spectacularly imprecise language
in the Draft Bill. The point is illustrated most vividly by clause
17 which defines an emergency for the purposes of the Draft Bill.
Clause 17(2)(e) provides that an event or situation constitutes
a threat to the welfare of the population (and so may be an emergency
if it is "serious") if, for example, "it involves,
causes or may cause" "disruption of a supply of food,
water, energy, fuel, or another essential commodity".

5. Given the consequences of a proclamation
of emergency (in terms of the power to make regulations effectively
suspending civil liberties) rather more precision than this is
called for. What is an "essential commodity?" Who decides?
The same need for greater precision is true of clause 17(2)(h)
which provides that an event may cause a threat to the welfare
of the population (and so may trigger an emergency) if it causes
the "disruption of medical, educational or other essential
services". Quite apart from the need to clarify what is an
essential service here too, there may also be a need to explain
why education is an essential service which requires the support
of emergency powers.

INDUSTRIAL ACTION

6. Because of the definition of an emergency
in clause 17, the Draft Bill will apply to a bewildering range
of industrial action which could easily be construed as constituting
a "serious threat" to what are not always emergency
situations. A teachers' strike would under this definition constitute
a serious threat to the welfare of all or part of the population
of the United Kingdom. A strike by benefit staff or tax collectors
would be a threat to "political stability" (another
ground for the proclamation of an emergency) because it causes
the "disruption of . . . the performance of public functions".
The same may be true of a strike by postal workers. A strike by
rail workers would be "a threat to welfare" if it causes
"disruption of facilities for transport", even though
it does not deprive the community of the essentials of life, as
required by the 1920 Act.

7. The only issue in the Draft Bill is whether
the threat would be "serious". But here the word "serious"
is used to qualify the threat to a service or activity, rather
than a situation or event which might objectively be thought to
be serious. So a long term strike by nursery teachers would be
such a disruption of the educational service as to be serious,
even though few people outside the Cabinet Office might regard
it as an emergency as that term would normally be understood.
An air of unreality and a complete lack of proportionality thus
inform the definition of an emergency. Yet the list of industrial
action which would fall within clause 17 could be multiplied,
and would include, for example, a strike by local government officers
or those in the private sector performing a local government function.

8. The other concern in relation to industrial
action is clause 21(4)(b) of the Draft Bill which provides that
regulations may not "prohibit, or enable the prohibition
of, a strike or other industrial action". This is narrower
than the corresponding provisions of the 1920 Act, section 2(1).
The latter provides that no regulations are to make it an offence
"to take part in a strike, or peacefully to persuade any
person or persons to take part in a strike". Under the new
formula it will thus not be possible to prohibit a strike. But
will it be possible to make it unlawful for specific groups of
workers to take part in it? [34]If
the answer is in the affirmative, it means that, for what may
be the first time since 1875, a peacetime government in the United
Kingdom will have taken the power to make participation in a strike
or other industrial action a criminal offence. The offence could
be punished by up to three months' imprisonment.

THE LIMITED
ROLEOF
PARLIAMENT

9. An important feature of Part 2 of the
Draft Bill is the minimal role proposed for Parliament in an "emergency".
This reflects the position in the Emergency Powers Act 1920, but
the question is now much more urgent given the wide and imprecise
nature of the powers which the government proposes to take under
the Draft Bill, and given the greatly extended circumstances in
which these powers may be used. Under the Draft Bill, Parliament
must be informed of a proclamation of emergency after it has been
made. But Parliament is not required to approve the proclamation
by resolution. There is not even a guarantee that the matter will
be debated in either House. This has given rise to problems in
the past, as governments have wearied of parliamentary scrutiny
under the 1920 Act. [35]

10. It is the extension of the circumstances
in which emergency powers may be used which serves particularly
to highlight the inadequacy of the 1920 model as a basis for a
"modernised" statute. The Draft Bill will cover all
emergencies, including those such as war which in the past gave
rise to the taking of ad hoc rather than the use of standing
powers. This is important because the taking of powers on an ad
hoc basis maximises the opportunity for parliamentary scrutiny,
and helps to focus public attention and public debate on the matter.
Although emergency legislation can be passed at great speed, it
still needs to be justified by the government to the House. The
process of enacting the legislation ensures that the powers taken
by the government are subject to at least some scrutiny, while
an opportunity is provided for the matter to be considered on
the floor of the House and in committee. Ad hoc legislation
requires governments to justify both the reasons for taking emergency
powers and the powers proposed to be taken. [36]

11. Bringing so many anticipated emergencies
(including war and natural disasters) within the standing emergency
powers means that this traditional form of scrutiny will be lost.
The approval of Parliament will not be required before emergency
powers are taken under the Draft Bill, though it is true that
Parliament may have to approve the emergency regulations made
to deal with the emergency. The Joint Committee will no doubt
wish to consider whether this forms an adequate basis for accountability
particularly in light of the fact that the regulations can be
made, andfollowing another precedent in the 1920 Actcan
operate for up to seven days without parliamentary approval (clause
24(7)). It is thus possible that serious restraints on individual
liberty will be introduced without the prior need for parliamentary
approval. Quite how these regulations in these circumstances can
possibly be subject to effective scrutiny by either the Joint
Committee on Statutory Instruments or the Human Rights Committee
is very unclear.

THE EMERGENCY
REGULATIONS

12. The proposed power to make regulations
after the proclamation of an emergency is an extensive one which
includes the power to confiscate or destroy property (with or
without compensation), prohibit freedom of movement, and "prohibit,
or enable the prohibition of, assemblies". Rather enigmatically
it also includes the power to "prohibit, or enable the prohibition
of, other specified activities" (clause 21(3)). Breach of
the regulations is to be an offence, with maximum penalties set
out in clause 21(4). But there are some questions about the scope
of the power to make regulations which need to be answered. For
example the powers of the police is a matter left hanging in the
air. The government appears to intend that it be left to the regulations
to determine which of the offences made by emergency regulations
is an arrestable offence, and in what circumstances the police
will be able to enter, search and seize property without a warrant.
Is this appropriate?

13. There is also the power to "prohibit"
and "require" movement "to or from a specified
place" (clause 21(3)(d)(e)). Will this authorise detention
without trial and the house arrest of specified individuals? It
should thus be clear that the making of these regulations needs
to be subject to the most careful Parliamentary scrutiny. Yet
in this respect the Draft Bill appears to diminish the already
limited powers of Parliament under the 1920 Act. Under the 1920
Act the regulations lapse with the proclamation of emergency after
one month. If there is a continuing need for emergency regulations,
there must first be a fresh proclamation and new regulations must
then be issued which in turn must be approved by Parliament. This
requirement of regular approval is a valuable device which compels
the government periodically to assess the need for all the emergency
regulations, and to account to Parliament for its judgement that
the regulations continue to be needed.

14. It is uncertain whether this procedure
has been carried forward into the Draft Bill. Admittedly a proclamation
under the Draft Bill will last for only 30 days and will have
to be renewed thereafter if the emergency continues. But it is
unclear whether a fresh proclamation under the Draft Bill will
require the issuing of fresh regulations, and whether the continued
operation of the emergency regulations will need fresh Parliamentary
approval. This is because the regulations in force at the time
the new proclamation is made "shall continue in force as
if made by virtue of the new proclamation" (clause 23(4)).
The very strong implication is that they will continue in force
without the need to be approved by Parliament. This ought to be
clarified. But at first sight it does appear that Parliament thus
loses the formal power to scrutinise the government's claim that
the regulations as issued continue to be needed even though the
nature of the emergency may have changed.

EMERGENCY REGULATIONSANDTHE
HUMAN RIGHTS
ACT

15. Given the extent of executive power
in the Draft Bill, the Joint Committee will want to be satisfied
that the government's proposed diluted impact of the Human Rights
Act is justified. The Draft Bill treats an instrument containing
regulations made under the Draft Bill as if it were primary legislation
(clause 25). This means that these instruments, and the regulations
that they may contain, cannot be challenged by the courts under
the Human Rights Act 1998. This is true no matter how far these
instruments may violate Convention rights. All that a court will
be able to do is issue a declaration of incompatibility. But the
government will be able to ignore any such declaration. This is
because a declaration of incompatibility does not affect the continuing
validity of the instrument in question (Human Rights Act 1998,
section 4). Not everyone will be satisfied that this is an appropriate
reconciliation of emergency powers and human rights.

16. The government's case for withdrawing
the Human Rights Act 1998 is based on a fear that the regulations
may be held up by injunctions in the courts. But the courts in
this country have been extremely compliant in emergencies in the
past, and the government would be hard pressed to give an example
where in such circumstances the liberty of the individual was
shown disproportionate concern. [37]It
is true that the position of the courts is transformed by the
Human Rights Act. But the government may need to explain why a
regulation in breach of Convention rights should not be held up
by the courts, and why it is desirable that the government should
be free to violate Convention rights with impunity. It is important
to note that Convention rights are heavily qualified and would
allow for some dilution of standards when there is a genuine emergency.
Article 11 for example allows restraints on the right to freedom
of assembly where these are "necessary in a democratic society"
in the interests of "national security or public safety".
It is not clear why the government feels that provisions of this
kind fail to provide the flexibility that it might need in an
emergency. Nor is it clear what steps the government has in mind
to take in regulations that would fall foul of the Human Rights
Act.

17. In view of the way in which emergency
powers are being used in other parts of the world at the present
time, it is in order to insist on the highest standards of judicial
vigilance of emergency powers in this country. A matter of particular
concern in view of current international developments is the power
in the Draft Bill for the making of regulations to "confer
jurisdiction on a court or tribunal (which may include a tribunal
established by the regulations)" (clause 21(3)(1)). This
would presumably include a power to confer criminal jurisdiction
and sentencing on military tribunals. [38]The
government should be pressed hard to explain what it has in mind
here, and to explain why any such regulation should not be subject
to judicial scrutiny to ensure that it complies with the right
to a fair trial in article 6 of the ECHR. It is perhaps difficult
to comprehend or anticipate any abuse of these powers. But five
years ago it would have been equally difficult to contemplate
a regime such as that now applying in Guantanamo Bay being operated
by a country with such a proud constitutional respect for personal
liberty as the United States of America.

CONCLUSION

18. There are thus a number of concerns
with the Draft Bill. These relate to the wide and indeterminate
power of the government and the absence of any notion of proportionality
about the circumstances in which a proclamation may be issued.
A major issue connected with these powers relates to their impact
on lawful industrial action, and the possibility that almost all
significant industrial action involving public services could
fall within the definition of an emergency. It is hardly enough
that the only effective restraint on the use or mis-use of these
powers is the common sense and sound judgement of the government
of the day.

19. Related to this are the diluted procedures
for scrutiny which the Draft Bill contains. The Draft Bill thus
magnifies the concerns that were raised in 1920 when the Emergency
Powers Bill was introduced. According to Lord Buckmaster, what
is now the 1920 Act left too much to "the uncontrolled opinion
of the Government", and failed to provide "any definite
protection against an unreasonable or excessive use of powers".[39]
The first regulations produced under the authority of the 1920
Act were greeted by The Times as "extraordinarily
complex and drastic",[40]
though it also conceded that the government of the day would have
no difficulty in defending them.

20. The central question for the Joint Committee
is thus a simple one. What is Parliament for in an apparent emergency?
The Draft Civil Contingencies Bill provides a welcome opportunity
for that question to be re-examined, and for the dignity of Parliament
to be reasserted. Is Parliament to continue to be simply a body
to which the executive reports and from which it seeks and secures
blanket approval for bulk regulations? Or is Parliament to be
a body which has the unqualified right to approve a proclamation,
and a right properly to scrutinise emergency regulations which
may have far-reaching implications for individual liberty? [41]